859 F.

2d 1067

UNITED STATES of America, Appellee,

v.
Esperanza SAA, Gabriel Saa, Martha Vega, Luis Andrade,
Defendants-Appellants.
Nos. 936, 937, 946 and 1098, Dockets 87-1475, 87-1476,
87-1492 and 87-1502.

United States Court of Appeals,

Second Circuit.
Argued April 4, 1988.
Decided Sept. 20, 1988.
1

Robert L. Herbst, New York City, for defendant-appellant Esperanza saa.

Mitchell A. Golub, New York City, for defendant-appellant Gabriel Saa.

Louis M. Freeman, New York City (Freeman, Nooter & Ginsberg, New York
City, David B. Miller, law student, of counsel), for defendant-appellant Luis
Andrade.

Gino Josh Singer, New York City, for defendant-appellant Martha Vega.

J. Gilmore Childers, Asst. U.S. Atty., S.D.N.Y., New York City (Rudolph W.
Giuliani, U.S. Atty. S.D.N.Y., Martin Klotz, Aaron R. Marcu, John F.
Savarese, Asst. U.S. Attys., New York City, of counsel), for appellee.

Before OAKES and WINTER, Circuit Judges, and CEDARBAUM, District

Judge.*
CEDARBAUM, District Judge:

Esperanza Saa, Gabriel Saa, Martha Vega and Luis Andrade appeal from
judgments of conviction on one count of conspiracy to distribute and possess
with intent to distribute cocaine, in violation of 21 U.S.C. Sec. 846. The
judgments were entered following a jury trial before the United States District
Court for the Southern District of New York, John M. Walker, Judge.

Appellants contend that alibi witnesses were improperly precluded from

testifying at the trial, that an informant's identity should have been revealed to
them, and that the trial court should not have allowed the Government to argue
that an inference unfavorable to the defendants could be drawn from their
failure to call the informant as a witness. Although we find that the district
court erred in these respects, the errors were harmless and we therefore affirm
the convictions of all four defendants.
BACKGROUND
8

The evidence, as presented in the Government's case, showed that in March of

1987, a paid confidential informant, referred to during the trial as "Robert," had
a conversation with one Eli Tollinchi about purchasing large quantities of
cocaine. Tollinchi, who set about finding a supplier of drugs to sell to Robert,
met in April with Luis Barona, a co-defendant who pled guilty before trial. In a
telephone conversation on Friday, April 24, 1987, Barona told Tollinchi to go
to 10 East 67th Street, a largely vacant building in Manhattan, to consummate a
deal with Robert. When Tollinchi and Barona met outside 10 East 67th Street,
Tollinchi told Barona that the transaction could not go forward that day
because Robert, Tollinchi's buyer, had not been able to contact his partner.
Barona told Tollinchi that the owners of the cocaine were present and should
not be trifled with because they were dangerous. Barona pointed to an orange
Chevrolet Nova in which a man and a woman were sitting in the front seat.
Defendant Gabriel Saa, who was introduced as the superintendent of 10 East
67th Street, then joined Barona. At Tollinchi's request, Barona and Gabriel Saa
agreed to hold on to the "material" until the following Monday.

On Monday, April 27, Tollinchi met with Gabriel Saa at 10 East 67th Street.
They drove together to pick up Robert. On their return to East 67th Street, the
same orange Nova was parked outside the building with the same man and
woman inside. Gabriel Saa identified them to Tollinchi as the owners of the
cocaine. Robert, Gabriel Saa and Tollinchi met with Barona inside the building.
Gabriel Saa produced two packages of cocaine. Robert pierced the packages
with a knife to test the cocaine and then left, saying that he would return in an
hour. Tollinchi and Barona waited in the Saa family apartment on the second
floor, where they met defendant Esperanza Saa, Gabriel Saa's wife. After
speaking with Robert by telephone, Tollinchi announced that Robert had once
again been unable to contact his partner and that the deal could therefore not be
done that day. Tollinchi and Barona were then taken to a vacant doctor's office
on the first floor. Tollinchi heard footsteps going up and then coming down the
stairs, whereupon Gabriel Saa told Tollinchi and Barona that the cocaine had
been taken away. Outside the building, Tollinchi saw defendants Luis Andrade

and Martha Vega, whom he recognized as the man and woman who had been in
the orange Nova. Vega was putting a package inside her large coat. Gabriel Saa
told Tollinchi to turn his back because the man and woman did not like to be
seen. When Tollinchi turned around again, Andrade and Vega had gone.
10

Late in the afternoon of the following day, April 28, Robert arrived at 10 East
67th Street with two undercover officers of the New York City Police
Department, who were acting as his partners. Barona, Tollinchi and the Saas
were already there. Gabriel Saa told the others that he had to go to Queens to
pick up the cocaine. He left in a pickup truck and was followed by undercover
agents. After a considerable period of searching in Queens, Gabriel Saa found
and parked next to the orange Nova. He had a conversation with Andrade while
Vega remained in the Nova. After meeting with Gabriel Saa, Andrade and
Vega drove to a residence in Queens. When they came out, with Vega wearing
a long coat, they drove to Manhattan.

11

While Gabriel Saa was looking for Andrade and Vega in Queens, Esperanza
Saa received telephone calls in the apartment at 10 East 67th Street. She told
Tollinchi that the calls were from Gabriel Saa and the owners of the cocaine,
who were having trouble finding each other. Later, after Gabriel Saa had
returned to East 67th Street from Queens, the Saas received two telephone calls
from the owners of the cocaine, who reported that they were nearby in
Manhattan. Esperanza Saa and Barona left, telling Tollinchi that they were
going to pick up the cocaine.

12

At about 10:15 p.m., Andrade and Vega arrived at 10 East 67th Street, where
they went inside and then left the building. Esperanza Saa announced that the
cocaine was upstairs in an apartment on the third floor. Tollinchi, Robert,
Barona, Gabriel Saa and the two undercover agents all proceeded to the third
floor apartment. When the cocaine could not be located, Gabriel Saa told
Barona to ask Esperanza Saa where it was. Either Barona or Esperanza Saa
produced two packages wrapped in tape, which were placed on the diningroom table. The two undercover agents then tested the packages by piercing
them with knives. According to the testimony of one of the undercover agents,
Esperanza Saa provided one of the knives that was used. Another Government
witness testified that Esperanza Saa was not present in the third-floor apartment
after the arrival of the cocaine.

13

The undercover agents demanded that the "buyers" be allowed to take the
cocaine outside to one of their cars to test it. When Gabriel Saa refused, the two
undercover agents and Robert left. All of the defendants, along with Barona and
Tollinchi, were arrested shortly afterward. Andrade and Vega were arrested in

the orange Nova after driving evasively in Manhattan for several minutes.
14

Following the Government's case, Gabriel and Esperanza Saa rested without
calling any witnesses. Andrade called his father, who testified that Andrade
lived in Brooklyn and was a painter. Andrade's father was precluded from
testifying as to Andrade and Vega's whereabouts on April 24 or April 27.
Andrade and Vega also called Barona, who testified that he had not seen
Andrade or Vega at the time the crime was alleged to have taken place, and that
although there had been talk about a drug transaction, no transaction had
occurred.

15

Robert did not testify at the trial, and his real name was never disclosed.
Tollinchi pleaded guilty to the conspiracy charge, cooperated with the
Government and testified against the defendants.

DISCUSSION
A. Preclusion of Alibi Testimony
16

On June 9, 1987, approximately one month before the trial began, the United
States Attorney's Office sent to counsel for the defendants certain discovery
material enclosed with a letter requesting reciprocal discovery. The letter
added:

17 addition, in the event your client seeks to interpose an alibi defense or a defense
In
based on mental disease, the Government requests written notice pursuant to
Fed.R.Crim.P. 12.1 and 12.2.
18

The letter did not specify the date, time or place of the offense with which the
defendants were charged.

19

On Sunday, July 5, 1987, two days before the trial began, the Government
turned over to the defense an Assistant United States Attorney's notes of an
interview with Tollinchi. The interview notes referred to certain times and
places relating to the narcotics transaction, and included mention of certain days
of the week. The notes did not mention any dates, however.

20

One week later, on Sunday, July 12, as the prosecution was nearing the end of
its case, Andrade's attorney telephoned the Assistant United States Attorney
who was prosecuting the case to inform him that Andrade and Vega would call
Andrade's father and stepmother as witnesses. According to an offer of proof

made by the defendants before Judge Walker the following day, these witnesses
would have testified that Andrade and Vega were at Andrade's father's house in
Brooklyn in the late afternoon or early evening of April 27. This testimony
would have contradicted Tollinchi's testimony placing them at 10 East 67th
Street in Manhattan at the same time or shortly before.
21

Judge Walker precluded the alibi witnesses' testimony. He held that the
combination of the Government's June 9 letter and the interview notes was
sufficient to satisfy the requirements of Fed.R.Crim.P. 12.1(a), and that the
Government had been prejudiced by the defense's failure to give earlier
notification of its alibi defense.
Fed.R.Crim.P. 12.1(a) provides:

22 written demand of the attorney for the government stating the time, date, and
Upon
place at which the alleged offense was committed, the defendant shall serve within
ten days, or at such different time as the court may direct, upon the attorney for the
government a written notice of the defendant's intention to offer a defense of alibi.
Such notice by the defendant shall state the specific place or places at which the
defendant claims to have been at the time of the alleged offense and the names and
addresses of the witnesses upon whom the defendant intends to rely to establish such
alibi.
23

The Government's June 9 letter did not trigger the notice of alibi requirements
of Rule 12.1(a) because it did not specify the time, place and date of the alleged
offense. The interview notes in combination with the June 9 letter do not satisfy
Rule 12.1(a) because the notes do not specify any dates, and also because the
Government did not state in writing that the offense was committed at the times
and places referred to in the notes. Furthermore, the Government provided the
interview notes only seven days before the defendants informed the
Government of their intent to call alibi witnesses, and only eight days before the
defendants actually sought to call the witnesses. Rule 12.1(a) gives defendants
ten days to comply with a proper Government demand. Therefore the
defendants were not in violation of the Rule even if a proper Government
demand had been made as of the time the interview notes were provided to the
defendants. For this reason we do not consider the Government's argument,
raised for the first time on oral argument of this appeal, that the combination of
the interview notes and the indictment satisfied Rule 12.1(a).

24

The Government relies on the Advisory Committee Note to Rule 12.1, which
states that "[t]he initial burden is upon the defendant to raise the defense of
alibi, but he need not specify the details of his alibi defense until the

government specifies the time, place, and date of alleged offense." (emphasis
added) Thus, the Government argues, even if the June 9 letter did not require
Andrade and Vega to disclose the details of their alibi defense, it at least
obligated them to raise it.
25

The Advisory Committee Note addressed the original text of the proposed Rule
as approved by the Supreme Court, which placed the initial burden of raising
the defense on the defendant. However, Congress rejected this approach, and
changed the language of proposed Rule 12.1 in order to place upon the
Government the burden of triggering the duty to disclose an alibi defense. See
H.R.Rep. No. 94-247, 94th Cong., 1st Sess., 1975, pp. 8-9, reprinted in 1975
U.S.Code Cong. & Ad.News 674, 680-81; C. Wright, Federal Practice &
Procedure: Criminal Sec. 202, at 743 & n. 1 (2d ed. 1982). The Rule as revised
and enacted by Congress clearly provides that a defendant need not disclose her
intent to offer an alibi defense unless and until the Government submits a
written request specifying the time, date and place of the alleged offense. See
United States v. Dupuy, 760 F.2d 1492, 1499 (9th Cir.1985); United States v.
Bouye, 688 F.2d 471, 474-75 (7th Cir.1982). It was therefore erroneous for the
District Court to preclude the testimony of these two alibi witnesses on the
ground that the defendants had failed to comply with Rule 12.1.1

26

The preclusion of the two alibi witnesses deprived Andrade and Vega of their
Sixth Amendment right to compulsory process to present the testimony of
witnesses in their own defense. See Pennsylvania v. Ritchie, 480 U.S. 39, 107
S.Ct. 989, 1001, 94 L.Ed.2d 40 (1987); Chambers v. Mississippi, 410 U.S. 284,
93 S.Ct. 1038, 35 L.Ed.2d 297 (1973); Gilmore v. Henderson, 825 F.2d 663,
665 (2d Cir.1987). Cf. Taylor v. Illinois, --- U.S. ----, 108 S.Ct. 646, 98 L.Ed.2d
798 (1988) (right to compulsory process not violated by exclusion of defense
witness where defendant deliberately violates discovery rules).

B. Refusal to Disclose Identity of Informant

27
28

On the day before the trial began, counsel for Esperanza Saa and Luis
Andrade2 requested in open court that the district judge order disclosure of
Robert's identity. The Government stated that it did not intend to call Robert as
a witness, and agreed to convey to him the defendants' request that they be
permitted to interview him in order possibly to call him to testify for the
defense. The Government also promised to make Robert available in the event
the defense wished to call him. The defendants renewed their request for
Robert's identity several times during the course of the trial. The prosecution
opposed disclosing Robert's identity, and contended that since Robert was soon
to enter the federal witness protection program, he might be in some danger

until that event took place. The Government also informed defense counsel that
Robert had conveyed a desire not to be interviewed by them. The district judge
declined to order disclosure of Robert's identity, on the ground that defendants
had failed to show that disclosure was essential to the defense.
29

The leading Supreme Court case on this question, Roviaro v. United States, 353
U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), holds that

30
[w]here
the disclosure of an informant's identity, or of the contents of his
communication, is relevant and helpful to the defense of an accused, or is essential to
the fair determination of a cause, the [informant's] privilege must give way.
31

353 U.S. at 60-61, 77 S.Ct. at 628. The Court explained that "no fixed rule with
respect to disclosure is justifiable." Id. at 62, 77 S.Ct. at 628. What is required
is "balancing the public interest in protecting the flow of information against
the individual's right to prepare his defense." Id. Whether non-disclosure is
erroneous "must depend on the particular circumstances of each case, taking
into consideration the crime charged, the possible defenses, the possible
significance of the informer's testimony, and other relevant factors." Id. See
Rugendorf v. United States, 376 U.S. 528, 534-35, 84 S.Ct. 825, 829, 11
L.Ed.2d 887 (1964); United States v. Lilla, 699 F.2d 99, 105 (2d Cir.1983);
United States v. Ortega, 471 F.2d 1350, 1359 (2d Cir.1972), cert. denied, 411
U.S. 948, 93 S.Ct. 1924, 36 L.Ed.2d 409 (1973).

32

The defendant is generally able to establish a right to disclosure "where the

informant is a key witness or participant in the crime charged, someone whose
testimony would be significant in determining guilt or innocence." United
States v. Russotti, 746 F.2d 945, 950 (2d Cir.1984); United States v. Roberts,
388 F.2d 646, 648-49 (2d Cir.1968); see United States v. Price, 783 F.2d 1132
(4th Cir.1986); United States v. Barnes, 486 F.2d 776 (8th Cir.1973). In
Roberts, the informant introduced an undercover agent to the defendant and
was present when the defendant and the agent negotiated and transacted two
sales of heroin. The Court, noting that the informant was "present during all the
significant events," 388 F.2d at 649, found that he was "obviously a crucial
witness to the alleged narcotics transactions," id., and therefore, his
whereabouts should have been revealed to the defense if properly requested.
But disclosure of the identity or address of a confidential informant is not
required unless the informant's testimony is shown to be material to the
defense. See United States v. Valenzuela-Bernal, 458 U.S. 858, 870-71, 102
S.Ct. 3440, 3448, 73 L.Ed.2d 1193 (1982) (dictum); United States v. Lilla, 699
F.2d at 105. As this Court's recent opinion in United States v. Jimenez, 789
F.2d 167 (2d Cir.1986) makes clear, it is not sufficient to show that the

informant was a participant in and witness to the crime charged. In Jimenez, the
informant was both participant and witness, but the district court's refusal to
order disclosure of his identity was upheld on the ground that the defendant had
failed to show that the testimony of the informant "would have been of even
marginal value to the defendant's case." 789 F.2d at 170.
33

Robert was both a witness to and a participant in many of the events that led to
the conviction of these defendants. He was the only agent of the Government
present at 10 East 67th Street on Monday, April 27, and he and Tollinchi were
the only potential Government witnesses to the happenings of that day. He was
at 10 East 67th Street during all of the critical events that took place there on
the following day, April 28. Robert's status was similar to that of the informant
in Roberts. Thus, if his testimony would have been material, his identity should
have been revealed to the defense. But the defendants other than Esperanza Saa
have made no showing that Robert's potential testimony was material to their
defense. Therefore failure to order disclosure was not error as to them. See
Jimenez, 789 F.2d at 170; Lilla, 699 F.2d at 105. As to these defendants,
Robert's testimony, for the reasons discussed in the next paragraph, could
merely have cast doubt on the general credibility of one of the Government
witnesses. "That is normally an insufficient basis to overcome the informant's
privilege." Russotti, 746 F.2d at 950.

34

Esperanza Saa argued to the district judge that the informant could shed light
on an apparent contradiction in the testimony as to whether she was present in
the third-floor apartment on April 28 after the arrival of the cocaine. Detective
Jose Franceschi, one of the undercover officers who acted as Robert's partners,
testified that Esperanza Saa was present. Officer Felix Marquez, the other
undercover agent, testified that she was not present. Detective Franceschi's
testimony concerning the events in the third-floor apartment on April 28--in
particular, his recollection that Esperanza Saa was present while the others
were searching for the cocaine, that she personally found the cocaine and
brought it into the dining room, and that she provided a knife for the "buyers"
to use in testing the cocaine--constituted strong evidence of Esperanza Saa's
participation in the conspiracy. Had Robert testified, as did Marquez, that
Esperanza Saa was not present in the third-floor apartment after the cocaine had
arrived and that she did not bring the cocaine into the dining room or provide a
knife for testing it, the testimony would have been material to her defense. Of
course, Esperanza Saa cannot establish that Robert would have testified in this
manner, but it suffices that she is able to point to "the events to which [Robert]
might testify, and the relevance of those events to the crime charged."
Valenzuela-Bernal, 458 U.S. at 871, 102 S.Ct. at 3448.

35

The Government argues that since it had promised to make Robert available in
the event the defense called him to testify, the district court's failure to order
disclosure of Robert's identity was not error. While it is true that this offer by
the Government obviated Esperanza Saa's need for Robert's name for the
purpose of subpoenaing him to testify, the offer still left her unable to seek to
interview Robert in order to obtain his account of what took place and to
determine whether to call him as a witness at all. As the Supreme Court noted
in Roviaro, "[t]he desirability of calling [the informant] as a witness, or at least
interviewing him in preparation for trial, was a matter for the accused rather
than the Government to decide." 353 U.S. at 64, 77 S.Ct. at 629 (emphasis
added). From this language, as well as from the practical reality that a witness
with a special relationship with the Government is not truly "available" to the
defense merely because he is physically available to be called, see United
States v. Torres, 845 F.2d 1165, 1170 (2d Cir.1988), stems the right under
Roviaro to information about an informant not merely so that the defense can
call the informant to testify, but so that it can seek to interview him first. See
United States v. Fischel, 686 F.2d 1082, 1092 n. 11 (5th Cir.1982) ("The desire
for a pretrial interview constitutes a justification for disclosing an informant's
address even when the government has agreed to produce the informer at
trial...."); United States v. Barnes, 486 F.2d at 780 (Government obligated to try
to locate informant "for interview by the defendant and use as a possible
witness") (emphasis added); United States v. Roberts, 388 F.2d at 649 (district
court should have ordered disclosure of informant's whereabouts, if requested
by defendants "in order to interview him as a potential witness") (emphasis
added). As the Fifth Circuit noted in Fischel, a witness may decide not to grant
an interview to a defendant, "[b]ut it is a different matter for the government to
place a defendant at a tactical disadvantage by reserving to itself alone the
ability to request an interview with a material witness." 686 F.2d at 1092.

36

In this case the Government informed defendants and the district court that
Robert did not wish to be interviewed by defendants. In addition, the
Government contended without elaborating that Robert, who was about to enter
the federal witness protection program, might have been in some danger had his
identity been revealed. We believe that having the prosecution pass along to an
informant a request by defendants that they be allowed to interview him is no
substitute for permitting defense counsel to ask the informant themselves.
Nevertheless, if the district judge was persuaded by the Government's
assertions that Robert would be in danger if identified, a middle course could
have been considered, such as having the Government produce Robert for an in
camera eeting with defense counsel and the court. Such a middle course might
have satisfied the defendants' right personally to request an interview with the
informant, without jeopardizing the informant's safety. In the absence of any

measure such as this, however, as to Esperanza Saa, the district court's failure to
order disclosure of Robert's identity was error.3
C. Charge to Jury and Summation Concerning Uncalled Witness
37
38

During a preliminary discussion concerning the jury charge, the Assistant

United States Attorney requested that Judge Walker give a standard instruction
concerning equally available uncalled witnesses. One of the defense counsel
requested a "missing witness" charge as to "Robert," who was entirely in the
Government's control. The prosecutor responded that "Robert" was equally
available since the Government had promised to make him available to testify,
although Robert was unwilling to be interviewed by defense counsel before
testifying.

39

At the charge conference, defense counsel renewed their objection to the use of
an "uncalled witness" instead of a "missing witness" charge with respect to
Robert. Defense counsel apparently never submitted the precise language of
their proposed instruction. Judge Walker refused to give a missing witness
charge as to Robert, and instead gave the standard instruction requested by the
Government. The charge stated that both sides have the power to subpoena
witnesses, and that if a witness could have been called by either side but was
called by neither, "then you may infer that the testimony of the absent witness
may have been unfavorable to the government or to the defendant as the case
may be, or to both of them." Judge Walker added that neither side had any
obligation to call a witness whose testimony would be merely cumulative. After
the charge was given, defense counsel renewed their earlier objection.

40

In their summations to the jury, counsel for three of the defendants pointed out
that the Government had not called Robert as a witness. In his rebuttal, the
Assistant United States Attorney said:

41

But the defendants do have the subpoena power. The defendants could have
called the confidential informant and they didn't. [Objection overruled.] Listen
to Judge Walker when he ... gives you what is known as an uncalled witness
charge. And he will tell you that you can draw an inference either way; you can
draw an inference against the defendants for not calling the confidential
informant. [Objections overruled.] Do you think that the confidential
informant's testimony would have helped them, ladies and gentlemen?

42

In addition to their objections during the rebuttal summation, defendants moved

for a mistrial at the end of the summation on the ground that the prosecutor's

comments were improper. The motion was denied.

43

United States v. Torres, 845 F.2d 1165 (2d Cir.1988), which comprehensively
reviewed the law on this subject, is dispositive of defendants' objection to the
district court's failure to give a missing witness instruction. In Torres, the
district judge denied a defense request to give a missing witness instruction
with respect to a confidential informant. As in this case, the Government in
Torres offered to make the informant available to testify if the defense wished
to call him, but in an in camera hearing the informant confirmed that he was
unwilling to speak with defense counsel before testifying. Torres pointed out
that "in the context of the evidentiary inference to be drawn from a party's
failure to call an available witness, the 'availability' of a witness ... depend[s] ...
on all the facts and circumstances bearing upon the witness's relation to the
parties, rather than merely on physical presence or accessibility." 845 F.2d at
1170, quoting United States v. Rollins, 487 F.2d 409, 412 (2d Cir.1973).
Therefore, Torres held, the district court erred in not considering the
informant's relationship to the Government and his refusal to be interviewed
when it determined that the informant was "available" to the defense. 845 F.2d
at 1170. Nevertheless, the Court held that even if the informant was as a
practical matter unavailable to the defense, the district court's failure to give a
missing witness instruction against the Government was not reversible error.
Whether to give such an instruction lies in the trial court's discretion, id. at
1170-71, and the reviewing court is reluctant to reverse "where a judge refrains
from commenting on the inference to be drawn on the facts before the jury and
allows counsel instead to argue the inference," id. at 1171. In addition, the
defendants in Torres had not submitted to the district court proposed language
for their requested charge, and therefore they were unable to show on appeal
that their request accurately reflected the law, as is required to successfully
challenge the trial court's denial of a requested instruction. Id.

44

The facts of this case are remarkably similar to those in Torres. Judge Walker's
charge, like that of the district judge in Torres, permitted the jury to draw an
inference adverse to the Government from its failure to call Robert as a witness,
and Judge Walker permitted defense counsel to argue such an inference in
summation. Furthermore, the defendants here, like those in Torres, apparently
did not submit any proposed language for their requested charge. Therefore, for
the reasons stated in Torres, Judge Walker's failure to give a missing witness
charge does not constitute reversible error.

45

Nevertheless, as in Torres, we must also consider whether the district judge

erred in permitting the prosecutor to argue in summation that the jury should
draw an inference against the defendants for failing to call Robert. Torres did

not address whether the trial judge in that case erred in permitting such an
argument; it merely held that "any error in this respect was harmless." Id.
46

In this case the defendants were not given Robert's name or address. The
Government informed the defense that Robert was unwilling to be interviewed.
The defendants were not able to contact Robert to ask him personally whether
he would be willing to submit to a pre-trial interview. Nor were they able to
investigate or inquire through other means as to what he might say if they
decided to call him. Thus, if they had called Robert to testify, they would have
done so without knowing what he would say. Since Robert was an informant
with a special relationship with the Government, from the defense perspective
this would have been an enormous and probably an intolerable risk. This, then,
was a witness who was clearly "favorably disposed" toward the Government,
and one who was not meaningfully "available" as a witness for the defense. See
United States v. Ariza-Ibarra, 651 F.2d 2, 16 (1st Cir.), cert. denied, 454 U.S.
895, 102 S.Ct. 392, 70 L.Ed.2d 209 (1981). Under these circumstances, it was
not appropriate for the trial court to permit the Government to argue that the
jury should draw an inference adverse to the defendants from their failure to
call Robert as a witness.

D. Harmless Error
1. Andrade, Vega and Gabriel Saa
47

With respect to most violations of constitutional rights in criminal trials, "if the
prosecution can prove beyond a reasonable doubt that a constitutional error did
not contribute to the verdict, the error is harmless and the verdict may stand."
Satterwhite v. Texas, --- U.S. ----, 108 S.Ct. 1792, 1797, 100 L.Ed.2d 284
(1988), citing Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17
L.Ed.2d 705 (1967). In Gilmore v. Henderson, 825 F.2d 663, 665-67 (2d
Cir.1987), harmless error analysis was applied to a Sixth Amendment violation
resulting from the improper preclusion of alibi witnesses, an error identical to
the preclusion of the alibi witnesses of defendants Andrade and Vega in this
case. 4 Harmless error analysis is appropriate here, because, although certain
Sixth Amendment violations "that pervade the entire proceeding" constitute per
se harmful error, see Satterwhite v. Texas, 108 S.Ct. at 1797, the violation here
concerned only two witnesses. This case therefore resembles Delaware v. Van
Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986), in which the
Supreme Court held that harmless error analysis applied to the denial of a
defendant's right to cross-examine a prosecution witness for bias. Further
support for our conclusion is found in Rose v. Clark, 478 U.S. 570, 106 S.Ct.
3101, 3106-7, 92 L.Ed.2d 460 (1986), in which the Court stated that "if the

defendant had counsel and was tried by an impartial adjudicator, there is a

strong presumption that any other errors that may have occurred are subject to
harmless error analysis." See also Fendler v. Goldsmith, 728 F.2d 1181, 1190
(9th Cir.1983) (applying harmless error doctrine, without discussion, to
violation of Sixth Amendment right to call witnesses).
48

The trial court's error in barring the two alibi witnesses, while violating
Andrade and Vega's right to compulsory process, was harmless. According to
appellants, the witnesses would have testified that on April 27th Vega was in
Brooklyn at 5:30 p.m. and Andrade arrived there at 6:30 or 7:00 p.m. Tollinchi,
the cooperating witness, had placed Andrade and Vega 50 minutes away, at 10
East 67th Street in Manhattan, between approximately 5:00 and 6:00 p.m. Even
if the alibi testimony is credited, it only shows that Tollinchi could not
remember the time of the meeting, as he repeatedly testified he could not. It
does not support a finding that Andrade and Vega were not at 10 East 67th
Street on the afternoon of April 27, and does not otherwise impeach Tollinchi's
credibility, as claimed by appellants Gabriel and Esperanza Saa.

49

Even excluding Tollinchi's testimony about April 27, there was sufficient
evidence against Andrade and Vega for us to conclude beyond a reasonable
doubt that the jury would still have found them guilty. There was testimony,
which Andrade's parents would not have contradicted, that Andrade and Vega
were in their car in front of 10 East 67th Street on April 24, and that the
occupants of the car were identified as the owners of the cocaine. There was
also overwhelming evidence which would not have been contradicted that it
was Andrade and Vega who brought the cocaine from Queens and delivered it
to 10 East 67th Street on April 28. Our conclusion that Andrade and Vega
would have been found guilty even if Andrade's father and stepmother had been
allowed to testify is not undermined by the effect of the prosecutor's comments
in his rebuttal summation asking the jury to draw an adverse inference against
the defense for failing to call Robert to testify. Andrade and Vega have not
suggested how the testimony of Robert could have been favorable to them. In
any event, based on the other evidence against them, we find beyond a
reasonable doubt that any adverse inference improperly drawn by the jury
would not have tilted the scales from not guilty to guilty.

50

Permitting the comments in the prosecutor's rebuttal summation was the only
error with respect to Gabriel Saa, as to whom the evidence of guilt was
powerful. This error was therefore harmless to Gabriel Saa as well.
2. Esperanza Saa

51

While the question is a closer one, we conclude that the trial judge's refusal to
order disclosure of the identity of the confidential informant and his permitting
the Government to argue the adverse inference against the defendants in
rebuttal summation were also harmless as to Esperanza Saa. The only evidence
against Esperanza Saa to which these errors relate is that of her activity in the
third-floor apartment after the drugs arrived on April 28--that is, the evidence
going to the questions of whether, as Detective Franceschi testified, she brought
the cocaine into the dining room of the third-floor apartment on April 28 after
the cocaine had been removed from its hiding place, whether she was present
when the cocaine was displayed to the buyers, and whether she provided one of
the knives used by the undercover agents to test it.

52

While mounting no challenge to the sufficiency of the evidence against her,

Esperanza Saa contends, as she did at trial, that the jury could have found that
she was simply a knowledgeable bystander. She argues that she performed
roles such as answering the telephone, taking telephone messages and letting
people into the building in her capacity as Gabriel Saa's wife and as a member
of the household who lived at 10 East 67th Street, and not as a participant in the
conspiracy. We agree that such an explanation is consistent with much of the
evidence against her. But there were several pieces of uncontradicted evidence
that place her role in a more incriminating light. On the evening of April 28,
after she received a telephone call from Andrade or Vega, who said they were
at 67th Street and Lexington Avenue, she and Barona left to try to find them
and bring back the cocaine. Furthermore, after Andrade and Vega had arrived
and then left the building, she told the waiting buyers that the cocaine had
arrived, and that they should come upstairs. Finally, she played a role in
transmitting messages by telephone while Gabriel Saa was trying to locate
Andrade and Vega in Queens, and knew where the cocaine was hidden after
Andrade and Vega had left 10 East 67th Street. In view of this evidence of
Esperanza Saa's participation in the conspiracy, the jury's conclusion would not
have been altered by testimony from Robert that she was not present in the
third-floor apartment after the cocaine arrived. Cf. United States v. Gotay, 844
F.2d 971, 977 (2d Cir.1988).

53

We have considered the other arguments raised by appellants, and have found
them without merit.

CONCLUSION
54

For the reasons discussed above, the appellants' convictions are affirmed.

Hon. Miriam Goldman Cedarbaum of the United States District Court for the
Southern District of New York, sitting by designation

Since the defendants did not violate Rule 12.1, we do not reach the question of
whether the district judge abused his discretion by precluding the witnesses
from testifying without considering whether a brief continuance would have
cured any prejudice to the Government

The district judge made clear that applications made by any defendant were
deemed also to have been made by the others

The defendants also requested disclosure of the contents of any statements that
Robert had given to Government agents. The Government informed the district
court that there was only one such statement, which was in writing. Failure to
order disclosure of the statement was not error. Although the Roviaro Court
included the words "or the contents of his communication" in a sentence
discussing the limits of the informant's privilege, 353 U.S. at 60-61, 77 S.Ct. at
628, the Court did not address this issue. Appellants have pointed to no case,
and we have found none, holding that this language in Roviaro provides
defendants with a generalized affirmative right, independent of the
Government's obligations under the Jencks Act, 18 U.S.C. Sec. 3500, and under
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), to
obtain statements of non-witnesses merely because they happen to be
informants. Judge Walker examined the statement for Brady purposes and
determined that it need not be disclosed. Our independent review of the
statement confirms that this determination was correct

Escalera v. Coombe, 826 F.2d 185, 193 (2d Cir.1987) assumed without
deciding that a similar error was subject to harmless error analysis. Escalera
was vacated by the Supreme Court, --- U.S. ----, 108 S.Ct. 1004, 98 L.Ed.2d
971 (1988), and the opinion on remand, 852 F.2d 45 (2d Cir.1988), did not
address the question